[2025] KEHC 310 (KLR)

Nduati v Republic (Criminal Appeal E068 of 2021) [2025] KEHC 310 (KLR) (16 January 2025) (Judgment)

Neutral citation: [2025] KEHC 310 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Appeal E068 of 2021

AK Ndung'u, J

January 16, 2025

Between

Francis Kamau Nduati

Appellant

and

Republic

Respondent

(From original Conviction and Sentence in Nanyuki CM Sexual Offences Case No 1462 of 2017– L. Mutai, CM)

Judgment

1. The Appellant, Francis Kamau Nduati was convicted after trial of house breaking contrary to Section 304(1) and stealing contrary to Section 279(b) of the Penal Code Cap 63 Laws of Kenya. The particulars were that on 18/08/2017 at Mugambi Estate in Laikipia East subcounty of Laikipia County, jointly with others not before court broke and entered the dwelling house of Geraldine Mary Kinsella with intent to steal therein and did steal therefrom items as per the attached sheet all valued at Kshs.3,190,900/- the property of the said Geraldine Mary Kinsella. On 12/10/2021, he was sentenced to six (6) years imprisonment on the first limb and twelve (12) years imprisonment on the second limb to run concurrently.

2. Being dissatisfied with the conviction and the sentence, he appealed to this court vide a petition of appeal filed on 15/10/2021. The conviction and the sentence are being challenged on the following grounds;i.The learned magistrate erred by failing to note that the prosecution failed to prove their case beyond reasonable doubt.ii.That the learned magistrate failed to note that the evidence tendered by the prosecution was insufficient to sustain a secure conviction.iii.The learned magistrate failed to note that no one witnessed the alleged offence being committed.iv.The learned magistrate rejected his defence without convincing reasons

3. The appeal was canvassed by way of written submissions. In his submissions, the appellant argued that his appeal is on applicability of doctrine of recent possession. He submitted that the investigating officer did not investigate the matter as he was not the one who arrested him and he relied on hearsay evidence. That DW2 testified that during the search, the Appellant was not present and did not know where exactly the items were found. That in his defence, he explained that the goods were from a known customer and gave the police his contact and therefore, his defence was not rightly considered and the trial court misapplied the doctrine of recent possession. Further, the trial court shifted the burden of proof to him and the prosecution case lacked credibility, was inconsistent and contradictory. That there was no direct, cogent, convincing and compelling evidence to warrant his conviction as the prosecution failed to proof their case beyond reasonable doubt.

4. The Respondent’s counsel on the other hand submitted that there is no dispute that the complainant’s house was broken into and items stolen which was proved beyond reasonable doubt. That the house was broken into on 18/08/2017 and the Appellant’s house was ransacked on 13/09/2017 and items suspected to be stolen and belonging to the complainant were recovered. That since the items were seized from his house, the burden was on him to show how he came into possession of the same. Therefore, the ingredient of participation by the Appellant and the doctrine of recent possession was sufficiently proved.

5. Counsel submitted that that the appellant’s defence was considered and the trial court found that it did not dislodge the watertight case by the prosecution. As to the sentence, she submitted that the trial court considered the mitigating factor by the Appellant and the fact that he was a repeat offender having been convicted in a case of handling stolen property and another case of escape from lawful custody. The court noted that he had not learnt his lesson thus stiff sentence.

6. This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. See Okeno v Republic [1972] EA 32.

7. I have therefore considered the submissions and the authorities relied by the parties. I have also read through the record of the trial court in order to evaluate all the evidence placed there and arrive at my own conclusions regarding the same. I have borne in mind however, that I neither saw nor heard the witnesses myself, and I have given due allowance for that fact.

8. The evidence before the trial court was as follows. PW1, the complainant testified that on the material day, she left home for shopping and on returning, she realised that her items were thrown outside and the door had been opened. She noticed some items missing from her house including the TV, DVD, Vacuum cleaner, iPad, computer backup drives, steam iron, water dispenser, electric cooking pan, gas cooker, gas cylinder, Sony video camera, Sony cool pix video camera L-840, GPS, dash camera, music iPad, headset, assorted jewelleries, one binoculars, sport bag, a tennis bag, four tennis rackets, four suitcases, and travelling bag all worth Kshs.3,190,900/.

9. She contacted her husband and the matter was reported to the police. That on the following day, she realised some more items were missing which included carpets and assorted goods. That she was informed some items were recovered which included grey suit case, sleeping mask, black hand drive-pinini fanina, black alcatel mobile phone, a buffalo make hand drive, red passport cover, sleeping mask cover which she identified in court. She also produced the receipt for alcatel phone. That she was informed by the police that recoveries were done at a certain house.

10. PW2, the complainant’s husband testified that he was contacted by his wife who informed him that their house has been broken into. He proceeded home and found a pile of clothes in the car port with their suitcase missing. The front door had been forced open and the window which had security grill had been tampered with. The house was muddy with multiple footprints and he noticed some items were missing. That months after, they discovered that more things were missing. They were called by the police and they were shown some items which he identified and the police informed him that they raided some premises and made the recoveries.

11. On cross examination by the Appellant, he testified he had proof that the goods belonged to him including the receipt produced in court and that he had bought most of the goods outside country.

12. PW3 testified that she was contacted by PW1, her tenant alleging breakage and theft and she proceeded to the scene and she found clothes in the car park. The window and the door had been forced open, the window grill had been tampered with and the glass broken.

13. PW4 was a security guard who testified that he was instructed by his boss to go to the scene with a sniffer dog. There were footprints which the dog followed to the road where there were vehicle marks.

14. PW5, the investigating officer testified that they were informed of theft and rushed to the scene and established that a small gate had been forced open, window grills cut and entry gained. That the house appeared disturbed and goods worth Kshs.3. 1 million were stolen. That on 12/09/2017, officers from DCI managed to arrest the Appellant after his house was visited and many goods suspected to be stolen were found. He contacted the complainant who identified Exhibit2-8 and inventory was prepared which was signed by the Appellant, Pexhibit1.

15. On cross examination, he testified that he did not raid the accused house and he was not present when the accused was arrested. That more than three items belonging to the complainant were recovered from him and did not identify anybody who had brought the items to him. That alcatel phone can be taken to a repairer and it is not wrong to engage in repair work.

16. The appellant in his sworn defence testified that he is an electrician and was arrested while he was taking children home. He was escorted to the police station where he learnt that some goods had been recovered from his shop and they were suspected to be stolen. That he explained that they were from a known customer and he gave the contact to the police. He was asked to pay some money.

17. On cross examination, he testified that on the material time of theft, he was working at his shop and nothing produced before court was recovered from his house. That what was produced in court was not his and he had received a phone and hard drive for formatting. That he had nothing to show that he received the customer.

18. DW2 testified that he sells electronics and knew the Appellant as an electrician. The police found him inside their shop and nothing was recovered from his section but from the Appellant’s section, they recovered some items. On cross examination, he testified that the items recovered were from the Appellant’s section. They were electronics.

19. DW3 testified that he knew the Appellant as an electrician and had once taken a TV set to him for repair. He testified on cross examination that the Appellant had an electronic shop.

20. That was the totality of the evidence before the trial court. The Appellant in his submissions submitted that the prosecution failed to prove their case beyond reasonable doubt. That the investigating officer did not arrest him and he only relied on hearsay evidence and therefore, proper investigations were not carried out. He also submitted that the items were recovered in his absence as DW2 testified and that DW2 could not tell exactly where the items were found and therefore, the trial court misapplied the doctrine of recent possession.

21. While convicting the Appellant, the trial court relied on the doctrine of recent possession. The court found that the items were recovered from the Appellant’s shop and though he had told the court that the phone and hand drive had been brought to his shop by a customer for formatting, he did not produce any document to show the items were left there by a customer and did not name a customer. Further, other items like suitcases would not require electrical repair and the Appellant did not explain how the goods ended up in his shop.

22. As to the applicability of the doctrine of recent possession, the Court of Appeal had this to say in the case of Isaac Ng’ang’a Kahiga alias PeterNg’ang’a Kahiga v. R Nyeri CA Criminal Appeal No. 272 of 2005:“It is trite that before a court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant…”

23. Section 4 of the Penal Code defines possession as follows:a.be in possession or have in possession includes not, only having in ones own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself) or of any other person.(b)If there are two or more persons and anyone or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them.”

24. Was possession proved? The evidence before the trial court was that the recovered items were recovered in a house. PW1 testified that she was informed by the police that recoveries were done at a certain house. PW2 testified that the police informed him that they raided some premises and made the recoveries. PW5, the investigating officer testified that officers from DCI managed to arrest the Appellant after his house was visited and many goods suspected to be stolen were found. DW2 testified that the items were recovered in their shop at the Appellant’s section. The trial court on the other hand was convinced that the items were recovered from the Appellant’s shop.

25. I have re-evaluated the evidence as recorded by the trial court. There is evidence of recovery of items from the appellant’s shop that were positively identified by the complainant as his property. The fact of recovery is confirmed by the appellant’s own witness, DW2. The defence put up by the appellant is that he explained the goods were from a known customer and he gave the police a contact. In cross examination, he admitted that he had nothing to show that he received the items from a customer.

26. In Mwangi V Republic [2012] KEHC 103 KLR the court observed as follows with regard to recovery;‘….For the doctrine to stand, the evidence of recovery of the material property must be sufficient and credible. There must also be sufficient and credible evidence for positive identification of the as property belonging other victim….’

27. Since the items were clearly seized in the appellant’s house, the burden was on him to show how he came into possession of the items of the complainant.

28. In Malinga v Republic [1989] KLR 225 Bosire, J (as he then was)expressed himself thus at page 227:‘’….By the application of the doctrine the burden shifts form the h prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution have proved certain basic facts. Firstly that the item he had in his possession had been stolen a short period prior to the possession; that the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and circumstances of the case, recent; that there are no coexisting circumstances which point to any other person as having ben in possession of the item. The doctrine being a presumption of the fact is a rebuttable presumption. That is why the accused is called upon to offer an explanation in rebuttal, which if he fails to do an inference is drawn that he either stole it or was a guilty receiver…’’

29. On the whole, am satisfied that on the basis of the available evidence the court correctly applied the doctrine of recent possession and the conviction was safe.

30. On sentencing, the exercise of discretion in sentencing by a trial court can only be interfered with by an appellate court in accordance with the principles set in the case of Shadrack Kipkoech Kogo v Republic Eldoret Criminal Appeal No. 253 of 2003 where the Court of Appeal stated;‘’sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka -vs – R.(1989 KLR 306)’’

31. During sentencing the court prosecutor addressed the court as follows;‘’The accused is not a first offender in Criminal Case No. 1465/17 he was found guilty and convicted of offence of handling stolen goods and sentenced to serve nine months imprisonment in Criminal Case No. E2125/21 he was charged and pleaded guilty to offence of escape from court II completely and on 27. 921 he was sentenced to 2 years imprisonment.

32. I have perused the trial court’s sentiments when sentencing the appellant the court stated;‘’ the accused mitigation duly considered. The accused is not a first offender. He is thus not about to learn his lesson. The offence he has committed herein is very serious. The complainant lost goods worth millions of shillings. A large percentage of those goods were not recovered. The complainant was therefore denied the right to the use of her own property. Somebody somewhere, the accused, benefitted from the complainant sweat. A deterrent punishment is called for which will serve as a lesson to the accused person. On the first limb he will serve six years imprisonment and on the 2nd limb he will serve 12 years imprisonment consecutive and sentence shall however be concurrent.’’

33. I note the Court considered the relevant factors in sentencing and the sentence is within the law. I have no grounds upon which to interfere with the same.

34. From the foregoing the appeal herein lacks merit in its entirety and is dismissed.

DATED SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF JANUARY 2025A.K. NDUNG’UJUDGE